AMMAD HAJI Vs. KUNHAMBOO

JUDGEMENT

(1.) This is an appeal against the acquittal of accused 1 and 2 respondents 1 and 2, the second respondent being the wife of the first respondent, in respect of a charge framed against them under S.448 I. P. C. The case was launched in the Court of the Second Class Magistrate at Cannanore upon a complaint preferred by the appellant alleging that the two respondents trespassed into paramba and house situated on it, plucked cocoanuts and committed mischief by cutting and removing pothals or coverings on the cocoanut trees, the offences being under S.447 and 417 I. P. C. The property including the paramba, the house and the trees was purported to be delivered over to the appellant, under two delivery records, Exts. P. 10 and P. 11, dated the 12th March 1957, in execution of two decrees obtained by him against the first respondent. It is the appellants case, that on the previous day, when he accompanied the amin to obtain delivery of possession the first respondent raised objections, and so, on the next day, delivery of possession was made, with the aid of the Police, but that when he visited the paramba on the 30th March 1957, he found respondents 1 and 2 in occupation of the house, and that pothals had been removed from the cocoanut trees and cocoanuts had been plucked. The complaint was made on these allegations.

(2.) The main ground, on which the appeal was pressed was that the Magistrate failed to give due weight to the records relating to the delivery of possession. The first respondent was not at the spot on the 19th March when delivery of possession was made. The evidence on behalf of the appellant is, that the second respondent collected her belongings which were in the house and vacated it, and afterwards the delivery of possession took place Exts. P. 3 and P. 4 evidence acknowledgments by the appellant, of his having taken possession.

(3.) At the trial, when examined under S.341 Cr.P.C. the first respondent stated, that he was not living in the house, and that the paramba was in the possession of one Kannan. The second respondent maintained however that she had been living in the house for about fifteen years and that there was no actual delivery of possession to the appellant. The learned Magistrate discussed the testimony of PWs 1 to 5 and reached the conclusion that there was in fact no delivery of possession under Exts. P. 10 and 11. He therefore held, that no question of trespass arose.